HYPERTENSION

Summary

The veteran, who served from August 1972 to August 1975 and November 1975 to November 2002, appeals a rating decision concerning his eye and knee conditions. The veteran sought service connection for hypertension (HTN) and right ear hearing loss, both of which were granted during the pendency of the appeal. The veteran also sought an increased rating for his eye condition, central serous chorioretinopathy, which was denied as the evidence did not support a rating higher than the current 10 percent. The Board granted separate 10 percent ratings for painful limitation of flexion in each knee under DC 5260, acknowledging the pain on motion as per 38 C.F.R. § 4.59. However, the claim for an increased rating for bilateral knee instability under DC 5257 was denied, as the evidence did not support more than slight lateral instability. The Board found the VA examination findings regarding instability more persuasive than the veteran's lay evidence. The case was remanded for a new VA examination for the left ankle residuals of an avulsion fracture, as the prior examination was deemed too remote.

Rationale

Favorable finding by RO during appeal; Board is bound by favorable finding

Full Decision Text

Citation Nr: A26032713
Decision Date: 04/09/26	Archive Date: 04/09/26

DOCKET NO. 210201-138015
DATE: April 9, 2026

ORDER

Entitlement to service connection for hypertension (HTN) is granted.

Entitlement to service connection right ear hearing loss is granted.

Entitlement to a rating in excess of 10 percent for central serous choretinopathy is denied.

Entitlement to a separate 10 percent rating for painful limitation of flexion of the bilateral knees is granted.

Entitlement to a rating in excess of 10 percent for lateral instability of the bilateral knees is denied.

REMANDED

Entitlement to an increased rating for residuals, avulsion fracture of the left ankle is remanded.

FINDINGS OF FACT

1. The Veteran's February 2021 VA Form 10182 Decision Review Request: Board Appeal (NOD) expressed disagreement with an August 2020 rating decision which denied service connection for HTN. The agency of original jurisdiction (AOJ) subsequently awarded service connection for HTN in a March 2024 rating decision.

2. The Veteran's February 2021 NOD expressed disagreement with an August 2020 rating decision which denied service connection for right ear hearing loss. The AOJ subsequently awarded service connection for right ear hearing loss in a March 2025 rating decision.

3. The Veteran's eye disability is not shown to have resulted in documented incapacitating episodes requiring at least 3 treatment visits for an eye condition during a 12-month period, and visual acuity is not shown to have been worse than 20/40 corrected near and far vision in both eyes with normal visual fields bilaterally.

4. The Veteran's bilateral knee disability has manifested as painful limitation of flexion.

5. The Veteran's bilateral knee instability has been at most mild lateral instability.

CONCLUSIONS OF LAW

1. The criteria for service connection for HTN have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 

2. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

3. The criteria for entitlement to a disability rating in excess of 10 percent for central serous choretinopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.21, 4.79, Diagnostic Codes (DC) 6099-6001. 

4. The criteria for a 10 percent rating for a bilateral knee disability manifesting as painful limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, DC 5260.

5. The criteria for a rating in excess of 10 percent rating for bilateral knee instability have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.49, 4.71a, DC 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1972 to August 1975 and from November 1975 to November 2002.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran timely appealed this rating decision to the Board in a February 2021 notice of disagreement (VA Form 10182) and requested a hearing with a Veterans Law Judge (VLJ).

In August 2024, the Veteran attended a hearing with the undersigned VLJ; a transcript of the hearing is of record.

SERVICE CONNECTION

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present
 February 2021 notice of disagreement (VA Form 10182) and requested a hearing with a Veterans Law Judge (VLJ).

In August 2024, the Veteran attended a hearing with the undersigned VLJ; a transcript of the hearing is of record.

SERVICE CONNECTION

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

1. Entitlement to service connection for HTN is granted.

The Veteran submitted a February 2021 NOD challenging the August 2020 rating decision which denied service connection for HTN. During the pendency of this appeal, the Veteran filed another claim for service connection for HTN that was subsequently granted in a March 2024 rating decision. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). Therefore, the Veteran's claim for service connection for HTN is granted.

2. Entitlement to service connection right ear hearing loss is granted.

The Veteran submitted a February 2021 NOD challenging the August 2020 rating decision which denied service connection for right ear hearing loss. During the pendency of this appeal, the Veteran filed another claim for service connection for right ear hearing loss that was subsequently granted in a March 2025 rating decision. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). The Veteran's claim for service connection for right ear hearing loss is granted.

INCREASED RATINGS

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range of motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59,
 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."  

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

It is noted that, under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the "same disability" or, more appropriately in this case, the "same manifestation" under various diagnoses is to be avoided. For purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. Esteban v. Brown, 6 Vet. App. 259 (1994).

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).

When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

3. Entitlement to a rating in excess of 10 percent for central serous choretinopathy is denied.

The Veteran contends that his service-connected eye disability is more severe than currently rated. His disability is currently rated 10 percent disabling under DC 6099-6001.

DC 6001 provides that the disability should be evaluated under the General Rating Formula for Diseases of the Eye. The General Rating Formula for Diseases of the Eye indicates that the disability should be rated based on either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation.

A 10 percent rating is warranted for documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months. A 20 percent rating is warranted for demented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months. A 40 percent rating is warranted for documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months. A 60 percent rating is warranted for documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months.

Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may
ed incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months. A 40 percent rating is warranted for documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months. A 60 percent rating is warranted for documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months.

Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, Diagnostic Codes 6061-6091.

For visual impairment, a noncompensable rating is warranted for [corrected] vision of 20/40 in both eyes. A 10 percent rating is warranted for vision in one eye of 20/50 and vision in the other eye of 20/50 or 20/40. Higher ratings are warranted for more severe levels of visual impairment or further decreased visual acuity. Alternatively, visual impairment may be rated based on visual field impairment, if shown; the Veteran has not been found to have visual field impairment. 38 C.F.R. § 4.79.

At the September 2019 VA examination, the Veteran was diagnosed with central serous chorioretinopathy, pinguecula, dry eye syndrome and cataracts. Corrected near and distance visual acuity was 20/70 on the right, and 20/20 or better on the left. There was no evidence of diplopia, visual field defects or incapacitating episodes in the previous 12 months.

VA treatment notes document visits to ophthalmology, without treatment, for observation, with treatment only as needed. In his August 2024 hearing, the Veteran confirmed that he frequented ophthalmology for observation but had not had treatment.    

Medical treatment records, VA examination, and the Veteran's testimony, overall, provide evidence against the Veteran's claim, as they do not show that his eye disability resulted in documented incapacitating episodes requiring 3 to 5 treatment visits for an eye condition during any 12-month period. Additionally, his visual acuity warrants a noncompensable evaluation based on corrected near vision and corrected far vision of 20/40 in both eyes and normal visual fields bilaterally.

The Veteran's eye disability does not meet the criteria for a disability rating higher than 10 percent; a higher rating is denied.

4. Entitlement to a separate 10 percent rating for painful limitation of flexion of the bilateral knees is granted.

5. Entitlement to a rating in excess of 10 percent for bilateral lateral instability of the knees is denied.

The Veteran seeks increased ratings for his bilateral knee disabilities. The Veteran is currently rated 10 percent disabling under DC 5257 for slight lateral instability, bilaterally. 

Upon consideration of the evidence of record, and without considering the ameliorative effects of any medication, the Board finds that the Veteran is entitled to separate, 10 percent ratings for painful limitation of flexion in the right and left knees for the entire appeal period under DC 5260. However, the evidence is persuasively against finding higher ratings are warranted on any other basis, to include instability under DC 5257.

The diagnostic codes that pertain to the evaluation of the knee are as follows:

Under DC 5256, a 30 percent rating is assigned for ankylosis of a knee at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating may be assigned for ankylosis of a knee in flexion between 10 degrees and 20 degrees. A 50 percent rating may be assigned for ankylosis of a knee between 20 degrees and 45 degrees. A 60 percent rating may be assigned for extremely unfavorable ankylosis of a knee in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256.

Under DC 5257, slight recurrent subluxation or lateral instability of a knee warrants a 10 percent. A 20 percent rating requires moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability.


 for ankylosis of a knee in flexion between 10 degrees and 20 degrees. A 50 percent rating may be assigned for ankylosis of a knee between 20 degrees and 45 degrees. A 60 percent rating may be assigned for extremely unfavorable ankylosis of a knee in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256.

Under DC 5257, slight recurrent subluxation or lateral instability of a knee warrants a 10 percent. A 20 percent rating requires moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability.

DC 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking", pain, and effusion into the joint.

DC 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage.

Under DC 5260, a 10 percent is warranted where flexion is limited to 45 degrees. A rating of 20 percent is warranted where flexion is limited to 30 degrees and a rating of 30 percent is warranted were flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. The maximum assignable rating for limitation of knee flexion under DC 5260 is 30 percent.

Under DC 5261, a 10 percent rating is warranted where extension is limited to 10 degrees and a 20 percent rating is warranted where extension is limited to 15 degrees. A rating of 30 percent is warranted where extension is limited to 20 degrees while a 40 percent rating is warranted where extension is limited to 30 degrees. A 50 percent is warranted where extension is limited to 45 degrees.

The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, DCs 5260 and 5261 may be assigned for limitation of flexion and extension of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004).   

A September 2019 VA examination diagnosed the Veteran with bilateral knee instability and bilateral knee arthritis. The Veteran reported an inability to walk for a long time, an inability to bend his knees, and swelling. Initial range of motion of the right knee measured to 60 degrees in flexion and to 0 degrees in extension, with pain noted on flexion and extension. There was no evidence of pain on weight bearing but tenderness was notated on palpation and there was objective evidence of crepitus. Initial range of motion of the left knee measured to 70 degrees in flexion and to 0 degrees in extension, with pain noted on flexion and extension. There was no evidence of pain on weight bearing but tenderness was notated on palpation and there was objective evidence of crepitus. No additional loss of motion was observed after repetitive use testing, or with repeated use over time, and the Veteran did not complain of flare-ups. There was slight reduction in muscle strength bilaterally, with no muscle atrophy. There was no ankylosis of either knee. Slight subluxation of the right knee was noted, and slight bilateral lateral instability was noted. No meniscal conditions were noted.

The Board finds that separate 10 percent ratings are warranted for each knee for limitation of flexion with pain under DC 5260. 38 C.F.R. § 4.71a. Notably, at worst, the Veteran's flexion of the knees has been to 60 degrees. He also reported painful motion and the VA examiner indicated that pain could significantly limit functional ability with repeated use over a period of time. A 10 percent rating under DC 5260 is not warranted unless flexion of the knee is limited to 45 degrees or less. However, the 38 C.F.R. § 4.59 establishes that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Accordingly, the Board finds that the minimum compensable rating is warranted for limited knee flexion accompanied by pain. Higher ratings are not warranted as the Veteran's symptoms do not more nearly equate to limitation of flexion of either knee to 30 degrees or less.

On the other hand, the Board finds that the evidence is persuasively against a rating in excess of 10 percent for instability under the rating criteria in effect prior to the rating decision on appeal. The lay and medical evidence do not suggest the presence of more than a small amount of bilateral knee instability that more nearly approximates
 evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Accordingly, the Board finds that the minimum compensable rating is warranted for limited knee flexion accompanied by pain. Higher ratings are not warranted as the Veteran's symptoms do not more nearly equate to limitation of flexion of either knee to 30 degrees or less.

On the other hand, the Board finds that the evidence is persuasively against a rating in excess of 10 percent for instability under the rating criteria in effect prior to the rating decision on appeal. The lay and medical evidence do not suggest the presence of more than a small amount of bilateral knee instability that more nearly approximates a moderate level of severity. Testing at the September 2019 VA examination showed normal anterior, medial, and posterior instability and 1+ lateral instability. Thus, while recognizing the lay evidence of instability, the Board places greater evidentiary weight on the VA examiners' findings in regard to the severity of the Veteran's right and left knee instability.  See English v. Wilkie, 30 Vet. App. 347 (2018). 

The Board has considered the other DCs pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). However, the Board finds that other DCs are inapplicable in this instance.

DC 5256 is not applicable because the record does not reflect ankylosis or symptoms more closely approximating ankylosis. DCs 5258 and 5259 are similarly not applicable as the Veteran had not dislocated his semilunar cartilage or had his semilunar cartilage removed. DC 5261 provides that a compensable percent rating is warranted when extension is limited to 10 degrees or worse; here, there is no evidence to suggest that the Veteran has experienced limitation of right knee extension to such a degree during the period under review. 

In conclusion, separate 10 percent ratings are warranted for each knee manifesting as painful limitation of flexion. To this extent, the appeals are granted. However, the Board finds that ratings in excess of 10 percent ratings are not warranted for each knee as the evidence persuasively weighs against a finding of lateral instability manifesting more than slight recurrent subluxation and/or lateral instability.  

REASONS FOR REMAND

Under the Appeals Modernization Act (AMA), the Board must remand a claim to correct an error by the RO to satisfy its duty to assist the Veteran under 38 U.S.C. § 5103A if the error occurred prior to the RO decision on appeal. 38 U.S.C. § 5103A (f)(2)(A); 38 C.F.R. § 20.802 (a). The Board may also remand a claim to correct any other RO error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. 38 C.F.R. § 20.802 (a). 

1. Entitlement to an increased rating for residuals, avulsion fracture is remanded.

The Veteran contends entitlement to a compensable rating for residuals of an avulsion fracture of the distal tibia of the ankle. 

Review of the record documents that the Veteran was last afforded a VA examination regarding his ankle disability in 2003, nearly 20 years prior to the August 2020 rating decision on appeal. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the Board finds that the examination is too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994); Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Board finds that the failure to obtain an examination constitutes a pre-decisional duty to assist error requiring a remand. 

The matters are REMANDED for the following actions:

1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected left ankle disability. 

 

 

Marcus N. Fulton

Veterans Law Judge

Board of Veterans' Appeals

Att
 level of disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994); Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Board finds that the failure to obtain an examination constitutes a pre-decisional duty to assist error requiring a remand. 

The matters are REMANDED for the following actions:

1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected left ankle disability. 

 

 

Marcus N. Fulton

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Love, Kelsey

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.